Thursday, March 3, 2016

What GCs Need to Know About Employment Enforcement Agencies

This is the third in our series of posts meant to give General Counsel (and those who support and inform them) a quick overview of employment law issues they are likely to encounter.  As we have noted in previous posts, the GCs we know just don’t have time to become expert in all the subjects for which they have responsibility. 
Any organization with employees is likely to have dealings with employment law enforcement agencies.  The Equal Employment Opportunities Commission (EEOC), state anti-discrimination agencies, and federal and state Departments of Labor are the most frequently encountered, but the National Labor Relations Board (NLRB), Immigration and Customs Enforcement agency (ICE) and Occupational Safety and Health Administration (OSHA) are also responsible for enforcing federal laws that affect most employers. In addition, companies that do business with government entities must work with the Office of Federal Contract Compliance (OFCCP) and comparable state (e.g., Minnesota, Wisconsin, and California) and local (e.g., Minneapolis, Miami, and Boston) contract compliance agencies. 
Any GC whose organization becomes the subject of a charge, audit, or other enforcement action initiated by one of these agencies will, of course, need to deal with or delegate responsibility for the specifics of the matter. Regardless of those specifics, interaction with the agency will be made much easier if the following points are kept in mind:
  • Enforcement agencies don’t make the law.  However you feel (or however your management feels) about the wisdom or validity of the legislation an agency is charged with enforcing, it is a complete waste of time and energy to argue with the agency about it.
  • Agencies have limited discretion about the matters they accept for processing. A charge or complaint against your company that seems ridiculous on its face may be just that, but the agency may have no choice but to process it.  Keep that in mind, and be sure your arguments about the merits are made at the point in the agency process where they will matter.
  • Agencies don’t have much autonomy or flexibility.  The statutes and regulations that create and control government enforcement agencies dictate what they do and how they do it.  Requests for exceptions to standard procedure in the agency enforcement process are seldom successful, and the agency may have no choice but to refuse such requests. It is usually best to accept the agency’s processes and comply with them.
  • Agencies have limited resources and limited authority. In our experience, many if not most of the agencies that enforce employment laws are underfunded, and their workers are under-trained. That can lead to slow processing, backlogs, inadequate factual investigations, and poor analysis of legal issues.  Recognition of these limitations can help keep expectations realistic.  Usually, the agency is not targeting your company for poor treatment and its mistakes and delays – however frustrating – are not deliberate. Equally important, agencies seldom have final authority in enforcement matters. Their determinations may be appealable, may be given only limited deference by the courts, or may only result in an employee’s clearance to pursue a claim in court. 
  • Agencies are neutral, at least to a point. The laws that create and control enforcement agencies often give them a dual role. They initially act as neutral investigators of alleged violations of law, but may switch to an advocacy or prosecutorial role if their investigation reveals some evidence of unlawful practices.  This dual function can be confusing for agency personnel, may mislead employees who seek agency assistance, and may frustrate employers who assume agency bias in favor of complaining employees.  In fact, many agencies take their roles as neutral investigators very seriously.  It is not helpful to assume agency bias, but if clear evidence of anti-employer bias is encountered when the agency is supposed to be acting as a neutral, that evidence should be brought to the attention of the agency’s upper management.
There are, of course, differences among agencies, and it can be very helpful to have someone in your organization with detailed knowledge about the agencies you are most likely to deal with. Regardless of the details of an agency’s mission or process, keeping the fundamentals in mind can help GCs and their staffs focus on what matters when agency interaction is inevitable.

Posted by Judy Langevin